Real Property & Right of Way

Types of Rights of Way:  It is important to understand the nuances between the different types of rights of way:  Public – County maintained; Public – Not County maintained; Public – Irrevocably dedicated/Not Accepted; and Private.

Public – County maintained. Responsibility for these roads is with Humboldt County Public Works. The State Streets and Highways Code applies, as well as County Code Section 411. Encroachment permits are required for any work being done in the right of way.  In addition, County Code Section 341 applies to private property adjacent to these roads.

The Section is the custodian for these rights of way and maintains records on them. As the custodian, the Section is responsible for processing vacation requests. Issues of unauthorized encroachments should be reported to the Land Use Division at (707) 445-7205. Issues of violations of the California Vehicle Code should be reported to local law enforcement. Public Works does not have the authority to enforce the California Vehicle Code.

Public – Not County maintained. These rights of way may be developed with a road or not.  When there are no improvements, a right of way is often referred to as a “paper road”; meaning that the “road” only exists on paper and not on the ground. Public Works is the custodian of the right of way; meaning that the Section keeps track of them and is responsible for any requests for vacations.

However, any improvements to be done to these rights of way may require a grading permit, and/or other permits, issued through the County Planning & Building Department. 

Improvements within a public right of way that is not county maintained must be appropriate for a road right of way.  Water tanks, garages, fences, walls, sheds, etc… are not permitted as these infringe upon the public’s ability to use the right of way. The County has an obligation to ensure that the public’s right to use the right of way is not obstructed.

The Section is the custodian for these rights of way and maintains records on them. As the custodian, the Section is responsible for processing vacation requests.

Issues of unauthorized encroachments should be reported to the Code Enforcement Unit of the County Planning & Building Department at (707) 476-2429. Issues of violations of the California Vehicle Code should be reported to local law enforcement. Public Works does not have the authority to enforce the California Vehicle Code. 

Public – Irrevocably dedicated/Not accepted.  These “rights of way” do not technically exist as they have not yet been accepted by the County. An irrevocable offer to dedicate allows the County to accept the right of way at some point in the future when the right of way will be needed.  It is imperative that improvements inconsistent with future development of the right of way be prohibited.  Structures are prohibited.  Fencing, grazing, farming, etc are appropriate uses. Fencing is often needed by the landowner to prevent trespassing on their property until such time as the County accepts the right of way.  The fact that the right of way is irrevocably dedicated to the County allows the County to apply reasonable restrictions on what is done on the right of way so as not to interfere with the future use of the right of way.

The Section is the custodian for these rights of way and maintains records on them. As the custodian, the Section is responsible for processing vacation requests.

Private.  These rights of way belong to specific properties and provide the necessary legal access for a property to connect to a public right of way.  Any improvements to be done to these rights of way may require a grading permit, and/or other permits, issued through the County Planning & Building Department.  Infringement of the easement is a private matter between the easement holder and the person causing the infringement.  These rights of way may be improved with a road, or unimproved. It is not uncommon for a private right of way to be created for development in the future.

The Section does not maintain files for private rights of way.  

Researching Right of Way: Records for all types of recorded rights of way (public and private) can be researched at the County Recorder's office. Title Companies can also assist the public in researching these records.  

Your title insurance policy can also be a good source of information for these right of ways as well. 

• The first part of the title policy typically contains appurtenant easements. These are the easements that benefit your property. Typically these are right of way from a public road to your property,
• The second part of the title policy are the exceptions. This sections pertains to the rights that others have to use your property.

In addition to the right of ways found in the County Recorder's office, a small number of right of ways were established in the late 1880's through a public process set forth in state law.  These right of ways are documented in a book called the Road Register which is on file at the Land Use Division. Because the road register is not a recorded document, the right of ways within it will not appear on a title report.

1. Very few cities and counties own the land underneath the roads.  Caltrans is an example where the State owns in fee title the lands under the majority of the roads within the state highway system.

2. For the County of Humboldt, the majority of the County roads have an easement.  Typically, the only roads that Humboldt County has in fee title are roads that were once owned in fee by the State and subsequently relinquished by the State to the County.  This typically occurs when the State constructs a new highway and then relinquishes the old highway to the County.  An example of this is Central Avenue in McKinleyville.  Central Avenue used to be US 101 before the current US 101 was constructed.  Once the current US 101 was opened, the State no longer needed to operate and maintain Central Avenue so the State relinquished it to the County.

3. Reviewing the legal description in a deed will reveal if the landowner owns to the middle of the road.  By law (Code of Civil Procedures 2077), ownership extends to the middle of the road unless the contrary is shown in the deed’s legal description.

Here are some examples:  

1. Lot 1, Tract 12345, in the City of Eureka, County of Humboldt, State of California… conveys title to the middle of the road.
2. That portion of Lot 1, Tract 12345, in the City of Eureka, County of Humboldt, State of California described as follows:  Beginning at the Northeast corner of said Lot 1; thence westerly along the north line of said Lot 1, a distance of 100 feet to the east line of Main Street; thence south along the east line of Main Street, a distance of 50 feet…  does not convey title to the middle of the road because of the deed call “to the east line of Main Street” and “along the east line of Main Street”
3. The portion of Lot 1, Tract 12345, in the City of Eureka, County of Humboldt, State of California described as follows:  Beginning at the Northeast corner of said Lot 1; thence westerly along the north line of said Lot 1, a distance of 100 feet to Main Street; thence south along Main Street, a distance of 50 feet…  conveys title to the middle of the road because of the deed calls while referencing the road, do not call for the side of the road.

When writing legal descriptions, it is important to understand these distinctions as it affects fee title should a right of way be vacated. As an example, Fieldbrook was mapped as lots and blocks.  The road network was never fully built out. Therefore, many of the roads shown on the tract map are referred to as “paper roads”; meaning the road only exists on paper. From time to time, landowners approach the County about vacating these paper roads in order to utilize the land encumbered by the road right of way of a road.  It is not uncommon to see legal descriptions in deeds in this particular area that were written in a way that if the road were vacated, the current landowner does not own their half of the right of way. See above for examples of language that should have been used in the legal descriptions in those deeds. The actual owner of the land can be located somewhere in the history of the property's chain of title. The owner will be the grantor of the first deed that used a deed call to the sideline of the road. It is likely that the owner has long since been deceased and that their estate was not aware of this unique land holding so it was never dealt with as part of the estate. The County Surveyor’s Office has seen cases where adjoining landowners have gone through a quiet title action to obtain fee title to resolve the issue caused by a poorly written legal description. This is one of the things that the County Surveyor’s office looks for when reviewing proposed legal descriptions.